Webster v. Powell

36 Fla. 703

• Court: Supreme Court of Florida
• Decided: June 15, 1895
• Status: Published

Opinion

Mabry, C. J.:

Judgment was obtained by John Powell against Nathaniel Webster and E. Rigney in the Circuit Court for Duval county, and Webster desires to prosecute a writ of error from the judgment, but Rigney refuses to join therein. Webster -filed with the Clerk of the Circuit Court for Duval county a prcecipe for writ of error, reciting therein that Rigney refused to unite in the writ, and it appears that he complied with the law in reference to suing out writs of error in every respect, except giving the bond required by Chapter 4414, laws of 1895-. The Clerk of the Circuit Court refused to issue the writ solely because the* said bond was not given, and Webster applied to the clerk of this court to issue the writ. No bond as required by the act mentioned having been executed, the clerk of this court declined to issue the writ without directions from the court, and Webster has renewed his motion here for the issuance of the writ without the required bond.

This motion involves solely the constitutionality of Chapter 4414, laws of 1895; it being conceded that if this act was constitutionally passed, the writ should not issue without executing the bond required by it. The validity of the act in question is assailed in two grounds. One is that the title is insufficient to authorize the provisions found in the body of the act; and the other is that the common law writ of error is a writ of right secured' to the citizen by provisions of our constitution, and that the Legislature can not impair it by executing the bond provided by the statute as a condition of its employment. The title of the act is “An act to amend sections 1270 and 1272 of the Revised Statutes of the State of Florida, relating to supersedeas orders and supersedeas bonds.”

Our Constitution provides (sec. 16, Art. III) that “each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended, shall be re-enacted and published at length.” Such constitutional provisions are not of English origin, but of American growth, and they were designed to arrest certain abuses that had developed in legislation under our systems of government. What those abuses were, and the purpose for which such provisious were incorporated into organic law, are clearly shown by the judicial discussion that has arisen in the interpretation of such laws. We have recently had occasion to-consider the purpose and meaning of the provision of our Constitution as applied to certain acts of legislation, in the cases of State ex rel. vs. Green; County Commissioners vs. City of Jacksonville, and State ex rel. vs. Hocker, Judge, decided at this term, and we need not go over again the ground covered by these decisions. The provision of the Constitution mentioned is mandatory, and it is the duty of the court to enforce it. It is stated by Sutherland on Statutory Construction, sec. 82, that “the courts with great •unanimty enforce this constitutional restriction in all ■cases falling within the mischiefs intended thereby to be remedied, and, in cases not within those mischiefs, they construe it liberally to give convenient and necessary freedom, so far as is compatible with the remedial measure, to the law making power.” The true view is to construe the provision so as to prevent the evils designed to be arrested by it, and at the same time in the accomplishment of proper legislation it should not be expounded in a strict or technical sense. One of the objects of the provision, as stated by Cooley (Constitutional Limitations, p. 172) was “to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the tides give no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted.” The history of legislation had shown that by adroit management provisions had been incorporated into measures in no way indicated by the title, and that members of the Legislature had voted for such measures in ignorance of such provisions. The framers of the Constitution designed to put a stop to the enactment of laws with such titles. The title of an act in Michigan was “An act to provide for the election of two justices of the peace, and for the appointment of a justice clerk and room for holding, justice court, in and for the city of Grand Rapids, and to define their jurisdiction, and to fix their compensation; and to repeal an act to provide for the election of four justices of the peace in and for the city of Grand Rapids, and to define their jurisdiction, and fix their compensation, approved March 11, 1891, and all acts and parts of acts in any wise contravening to the provisions of this act.” At the time of the passage of the act there were four justices of the peace in office in the city of Grand Rapids, and in the body of the act two of them were-legislated out of office. The court said: “No one, in reading the title of this act while it was a bill before the Legislature, would have been apprised that the-offices of respondent and Justice Hughes were not only to be abolished, but that they were to be deprived of holding the same after the fourth day of July, 1889. If one can gather from the clause in the title in relation to the repeal of the act of 1881, which provides for four justices, that the intention and purport of the-bill might be to decrease the number of justices from four to two, yet there is not the slightest hint therein that any of the justices already in office should be deprived of their terms, or, if so, which one; or two, of them was thus to be legislated out of office. The notice in the title, which the Constitution imperatively requires, was therefore not given, and the plain purpose of the constitutional mandate evaded and violated.” Brooks vs. Hydorn, 76 Mich. 273, 42 N. W. Rep. 1122. The title of an act in Wisconsin was “Anací to legalize and authorize the assessment of street improvements and assessments,” and the provisions in the act were confined exclusively to the city of Janesville. The court said: “No one reading this title would for a moment suppose that the sole purpose-of the law was to legalize the proceedings of the common council of the city of Janesville in making these special assessments. I't is true, the act embraces but one subject-matter. It does not unite various matters having no necessary or natural connection with each other. It is not, therefore, open to objection under the first clause of the provision. But there is no reference in the title to the city of Janesville or any other locality. And it would seem impossible-to devise a title, more calculated to mislead and throw off suspicion or inquiry as to the real subject of the act, than the one employed on this occasion. To sanction such a procedure would be to override and nullify a clear, plain and mandatory provision of the Constitution.” Durkee vs. City of Janesville, 26 Wis. 697. So it was held in New Jersey (Coutieri vs. New Brunswick, 44 N. J. L. 58), that the following title: “An act to fix and regulate the salaries of city officers in cities in this State,” was a mistatement of the object of the act, which was to fix and regulate, exclusively, the salaries of the officers of the city of New Brunswick. The court said: “The purpose of the Constitution in this requirement (as to expressing the subject in the title) is to prevent fraud upon legislation by means of false and deceptive titles to statutes. In this instance the title is both false and deceptive; false, as it imports a regulation of a class of cities, when in truth it is applicable to a single city; deceptive, because no one, on reading such title, could reasonably understand that the body of the act was to have so limited an effect.” So an act entitled “An act to incorporate the Schenectady Astronomical Observatory,” and providing for an incorporation by that name, and directing the comptroller to loan to the incorporation $60,000 of the capital of the common school fund, to be secured by mortgage upon the observatory and site, was held unconstitutional on the ground that the subject of the loan was not expressed in the title. People ex rel. vs. Allen, Comptroller, 42 N. Y. 404. As to the insufficiency of acts of legislation having false and delusive titles, see, also, People ex rel. vs. Commissioners of Highways of Palatine, 53 Barb. 70; Moses & Beebe vs. Mayor, etc., of Mobile, 52 Ala. 198.

It is evident- from reading the act (Chapter 4414, laws of 189o) that one of its main purposes is to require defendants against whom judgments have been rendered in the trial court to execute bonds with two good and sufficient obligors in sums sufficient to cover the amounts for which the judgments were rendered, as a condition to their right to have the cases reviewed., on writ of error in the appellate court. Never before in the history of this State has such legislation been attempted. Even should we concede that the Legislature has the power to prescribe such a prerequisite to the right of suing out a common law writ of error, it must be admitted that such a law -would be extremely harsh and oppressive. That such was the purpose of' the act in question, admits of no doubt, and a remarkable feature of it is that such purpose was attempted to be accomplished by an act entitled ‘ ‘an act to amend sections 1270 and 1272 of the Revised Statutes of the State of Florida, relating to supersedeas orders and supersedeas bonds.” Section 1270 relates to the issuance of writs of error, and in no way refers to supersedeas orders and supersedeas bonds, and so far as this section is concerned, there is nothing expressed in the title in reference to writs of error, unless the mention of the section by number will suffice. There is some conflict in the authorities as to whether an amendatory act sufficiently expresses its subject when it gives simply the number of the section of the Revised Stat- • utes intended to be amended without also correctly stating the subject of the section; but under a Constitution like ours, requiring the subject of an act to be expressed in the title, the better view is that an amendatory act does not sufficiently express a subject of a section in the Revised Statutes by merely referring to its number. Harland vs. Territory of Washington, 3 Wash. Ter. 131; The Borrowdale, 39 Fed. Rep. 376; People ex rel. vs. Hills, 35 N. Y. 449; People ex rel. vs. Briggs, 50 N. Y. 553; Tingue vs. Village of Port Chester. 101 N. Y. 294, 4 N. E. Rep. 625; People ex rel. vs. Judge of Superior Court, 39 Mich. 195; State ex rel. vs. Algood, 87 Tenn. (3 Pickle), 163, 10 S. W. Rep. 310; State vs. Bowers, 14 Ind. 195; Wall vs. Garrison, 11 Colo. 515, 19 Pac. Rep. 469. So, in reference to the act before us, we can not eliminate the words in the title, “relating to supersedeas orders and supersedeas bonds,” and consider the mere mention of the number of the section as a sufficient expression of a subject in the title. The phrase, “relating to super - 'sedeas orders and supersedeas bonds,” can not help the act so far as section 1270 is concerned, because it falsely states and misrepresents the subject-matter of that section, as it does not in any way deal with supersedeas orders or bonds. There can be no doubt-that the act is entirely inoperative as a direct amendment of section 1270.

Section 1272 does not provide for or regulate the issuance of writs of error, but it does provide the conditions upon which such writs shall operate as supersedeases, and to that extent it relates to supersedeas orders and supersedeas bonds. An act confined to the granting of supersedeas orders and the giving of supersedeas bonds, with a title to amend section 1272, relating to supersedeas orders and bonds, would be in compliance with the mandate of the Constitution as to-the expression of the subject-matter in the title. But a supersedeas and a writ of error are entirely different things. A writ of error does not per se affect the judgment, which may be executed while the writ is-pending, unless a supersedeas issues to stay the proceedings. Under the title to amend sections 1270 and 1272, relating to supersedeas orders and supersedeas bonds, the act under consideration provides, among other things, that before a writ of error shall issue ins favor of a party against whom a judgment has been, rendered in the court below, he shall file a band, payable to the adverse party, with two good and sufficientobligors, in a sum sufficient to cover a money judgment rendered against him, together with costs, and conditioned to pay the amount of the judgment, with, interest, costs and damages, in case the judgment be affirmed, the writ of error quashed, or the appellate' proceedings dismissed. The title stated is calculated to warn members of the Legislature that the act dealt only with supersedeas orders and supersedeas bonds, and contained no intimation that such a radical change-in reference to the right of suing out a writ of error was designed. Supersedeases are made operative by the giving of bonds, and the idea of a bond in connection with a supersedeas was not unusual. The purpose of the constitutional provision was, as fully shown, by the authorities cited, to prevent surprise or fraud, upon the Legislature by means of false and deceptive-titles to statutes, and we are of the opinion that the-title to the act we are considering is of that character. It does not contain such an expression of the subject, dealt with in the bill as to apprise the legislators of the real object sought to be accomplished by the amendment. Under such a title, calculated so easily to mislead members as to the true purpose of the act, and containing as it does such extraordinary provisions, extending' in some cases to great hardship, if not to the denial of natural rights, should not be sustained.. We are of opinion that the entire act is void on the ground stated, and so declare it. The provision in the second division to section two, in reference to super•sedeas orders, is so dependent upon the other provisions of the act as to fall with them.

We do not consider the other ground urged as a reason why- the act is void, as it is not necessary.

The clerk of this court will issue the writ of error prayed for in the motion, and it will be so 'ordered.